Ayol (Migration)

[2024] AATA 2475

Ayol (Migration) [2024] AATA 2475 (20 March 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Ajok Aciek Ayol

REPRESENTATIVE:  Mr Emete Joesika (MARN: 0100301)

CASE NUMBER:  2002956

HOME AFFAIRS REFERENCE(S):          CLF2019/37907

MEMBER:Kira Raif

DATE:20 March 2024

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a Child (Residence) (Class BT) visa.

Statement made on 20 March 2024 at 1:53pm

CATCHWORDS

MIGRATION – Child (Residence) (Class BT) visa – Subclass 802 (Child) visa – applicant did not hold a substantive visa at the time the application was made – applicant is a person to whom section 48 applies – no evidence that the applicant cannot be cared for by her parents because they are deceased, of unknown whereabouts or incapacitated – best interest of the applicant – there are compassionate or compelling circumstances – refer the case to the Minister – decision under review affirmed 

LEGISLATION

Migration Act 1958, ss 48, 65, 351

Migration Regulations 1994, cl 802.211

STATEMENT OF DECISION AND REASONS

Application for review

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 30 January 2020 to refuse to grant the applicant a Child (Residence) (Class BT) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant is a national of the US, born in December 2015. She applied for the visa on 1 October 2019. The delegate refused to grant the visa on the basis that cl 802.211 was not met because the delegate found that the applicant was subject to the operation of s. 48 and did not become a dependent child of the sponsor since the last application for a substantive visa was made. The applicant seeks review of the delegate’s decision.

3. The applicant appeared before the Tribunal on 20 March 2024 to give evidence and present arguments. Given the applicant’s young age, the applicant’s parents gave evidence on her behalf. The applicant was represented in relation to the review. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   RELEVANT LAW

4. At the time of application, the Child (Residence) (Class BT) visa contained Subclass 802 (Child) and Subclass 837 (Orphan Relative). In this case, claims have only been made in respect of Subclass 802 (Child).

5. The criteria for a Subclass 802 visa are set out in Part 802 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). As there is no letter of support from a State or Territory government welfare authority (cl 802.216, 802.226A), the criteria to be met in this case include cl 802.211.

   If the applicant is a person to whom section 48 of the Act applies, the applicant:

   (a)has not been refused a visa or had a visa cancelled under section 501 of the Act; and

   (b)      since last applying for a substantive visa, has become a dependent child of:

   (i)  an Australian citizen; or

   (ii) the holder of a permanent visa; or

   (iii) an eligible New Zealand citizen.

   Does the applicant meet the requirements of cl. 802.211?

6. The applicant provided to the Tribunal a copy of the primary decision record. It indicates that the applicant first travelled to Australia in February 2017 as a holder of a Tourist visa and made an application for the Child visa in June 2017. That application was refused in August 2019.

7. On 1 October 2019 the applicant made the second application for the Child visa that is the subject of this review. The applicant is sponsored by her mother Ms Rebecca Ayak Kuol Juuk. The primary decision record indicates that since arriving in Australia in February 2017 the applicant had not departed Australia and the applicant did not hold a substantive visa at the time the application was made.

8. The delegate determined that the applicant was subject to the operation of s. 48 of the Act. The delegate noted that since the visa applicant was under the age of 18, she was considered to be a dependent child of the sponsor when the first application was made. She did not become a dependent child since that application was made.

   Evidence before the Tribunal and disposition

9. The information in the primary decision record indicates that the visa applicant had previously made another visa application in June 2017 and that application was refused in August 2019. Mr Ayol (the applicant’s father) told the Tribunal that the application was refused due to a breakdown of communication as at the time, the child’s mother was in hospital and could not deal with the Department’s request.

10. Information in the primary decision record indicates that the applicant had not departed Australia since her first entry in February 2017. Information in the primary decision record also indicates that the applicant was not the holder of a substantive visa at the time the second application for the Child visa was made. The Tribunal thus finds that the applicant is a person to whom section 48 applies.

11. Clause 802.211(b) relevantly requires the applicant to have become a dependent child of an Australian citizen or permanent resident since last applying for the substantive visa. However, as the applicant is under the age of 18, she would be considered a dependent child of her parents from birth. She did not become a dependent child of an Australian citizen or a holder of a permanent visa or an eligible New Zealand citizen since last applying for the substantive visa. The Tribunal is not satisfied the applicant meets cl. 802.211.

12. There is no evidence that the applicant cannot be cared for by her parents because they are deceased, of unknown whereabouts or incapacitated. The Tribunal is not satisfied the applicant meets the requirements for the grant of the Orphan Relative visa.

13. The applicant has requested that the Tribunal refer the case to the Department for consideration by the Minister pursuant to s 351 which gives the Minister a discretion to substitute for a decision of the Tribunal another decision that is more favourable to the applicant, if the Minister thinks that it is in the public interest to do so.

14. In her submission to the Tribunal of 20 March 2024 the applicant states that there are compassionate or compelling circumstances which are out of her control, and which affect the best interest of the applicant, who is the biological child of an Australian citizen. The applicant states that she is only eight years old and is solely dependent on the sponsor and cannot depart Australia alone to lodge the application offshore. The applicant states that her mother is currently expecting another child, is depressed and anxious and cannot allow the child to travel alone. The applicant (through her representative) states that the requirements of s. 48 and of Item 1124B should be waived.

15. The Tribunal considers that submission odd, as there is no provision in the Act to waive the statutory requirements contained in s. 48 or in Schedule 1 of the Regulations. The applicant’s representative – who is a registered migration agent of some experience – is well aware of that.

16. Nevertheless, the Tribunal accepts that the applicant is a minor child who cannot travel overseas independently. The Tribunal also accepts that the sponsor is not able, at least at present, to accompany the child overseas, particularly given her responsibilities towards other minor children. thus, there is a real likelihood that  the applicant – who is a minor child – will be separated from her parents if not granted an Australian visa.

17. The Tribunal accepts that there are compassionate circumstances in this case. The Tribunal has considered the applicant’s case and the ministerial guidelines relating to the discretionary power set out in the Department’s Procedures Advice Manual (PAM3) and will refer the matter to the Department.

    Conclusion

18. For the reasons above, the criteria for the grant of a Subclass 802 visa are not met. There have been no claims advanced in respect of the other visa subclass in Class BT (Subclass 837).

    DECISION

19. The Tribunal affirms the decision not to grant the applicant a Child (Residence) (Class BT) visa.

    Kira Raif
    Senior Member